Abstract

The focus of this paper is on the use of the concept of sexual exploitation in legislation concerning sexual expression by persons with mental impairment, with particular emphasis on persons with intellectual disability. Two main statutory approaches have been adopted in Australian jurisdictions. The first is prohibition of sexual acts between a person with intellectual disability and others who, by virtue of their employment, are in a position of ascendancy over that person. The second is the prohibition of sexually exploitative acts by any person towards a person with an intellectual disability. The major aim in this article is to critically examine these approaches and evaluate them according to the standards of being non-discriminatory, minimally restrictive of rights, and enforceable. It is argued that comprehensively cataloguing sexually exploitative acts is untenable, with the result that prohibition of all sexual exploitation is unenforceable. The alternative, namely legislation that prohibits sexual relations with any person employed to render any kind of service to the intellectually disabled person, would further restrict an already limited number of potential sexual partners. We suggest that a more useful approach would be to prohibit sexual activity in one-on-one relationships whose scope is commonly understood to exclude such acts, while allowing relations between workers or caregivers and the persons to whom they do not directly render services. This mechanism would have to be narrowly defined to have the desired effect of affording protection to vulnerable persons while preserving their right to sexual expression.